6th Circuit rules that counseling recommendation violated the ADA

Employers should be especially cautious when recommending psychological counseling or therapy to employees after the 6th Circuit ruled on Aug. 22 in Kroll v. White Lake Ambulance Authority that such counseling constitutes a “medical examination” under the Americans with Disabilities Act (ADA). Although other courts have ruled on whether employerrecommended medical examinations are “job-related and consistent with business necessity,” as required by the ADA, the 6th Circuit’s ruling differed by focusing on the definition of the exam itself.

Emily Kroll began working as an emergency medical technician at the White Lake Ambulance Authority (WLAA) in Whitehall, Mich., in 2003. Although her supervisors initially considered her to be a good employee, her workplace behavior became problematic following an affair with a married co-worker. This behavior culminated in an April 2008 incident in which Kroll allegedly failed to administer oxygen to a patient because she was arguing with a colleague in a WLAA ambulance.

Kroll’s supervisors, concerned about her well-being, asked her to attend counseling sessions, although they claim that they did not specify an exact therapy. Kroll refused and subsequently resigned.

Kroll then sued WLAA, claiming her supervisors’ request that she obtain counseling violated the ADA, which states: “A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

WLAA moved for summary judgment in the case. In August 2010, a district court granted that request, holding that the psychological counseling at issue did not constitute a medical examination. Kroll appealed the decision to the 6th Circuit, which overturned the lower court’s decision, ruling that the counseling did fall under the definition of a medical exam. Notably, the court did not decide whether the exam in question was job-related and consistent with business necessity, instead remanding that issue to the district court.

Following Guidance

To reach its decision, the 6th Circuit relied primarily on a seven-factor test laid out in the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance. The test aims to analyze whether a test or procedure qualifies as a medical examination by considering factors such as whether a health care professional administers the test, whether that professional interprets the test, and whether the test is designed to reveal information about an impairment or an individual’s physical or mental health.

Taken together, these three factors were enough to convince two of the three judges that the psychological counseling did constitute a medical exam. (The court noted that it did not have enough information to rule on the remaining four factors, but that “ultimately none was dispositive to [its] analysis.”)

The court did not take WLAA’s intent into account, which Littler Mendelson Shareholder Peter Petesch says can make life difficult for employers that may simply be trying to help their workers. “An employer needs to evaluate the risks in taking what seemed in this case to be the kinder, gentler route,” he says. “There are certain risks attendant to doing that, rather than just holding her accountable for her behavior.”

Judge Jeffrey Sutton raised this issue when he partially dissented from the majority opinion, disagreeing that the requirement to obtain psychological counseling was equivalent to a requirement to undergo a medical exam. In his dissent, Judge Sutton argued that “the determinative words [in the ADA] are ‘require’ and ‘medical examination,’ not just ‘medical examination.’” He noted that although Kroll’s supervisors requested that she receive counseling, they did not specify a type of counseling or individual counselor, nor did they seek to know her diagnosis. Thus, “Kroll, not the company, controlled her destiny—controlled ... whether she sought counseling that included a medical examination or did not.”

Consider Conduct

There are several things a company should do if an employee begins displaying problematic behavior. First, make sure that a qualified employee is handling the situation with guidance from in-house counsel, advises Petesch. “It just shows the need ... for HR and the management team to be consulting with in-house counsel before ordering a mental evaluation, psychological counseling or even behavioral counseling,” he says. “There needs to be a disciplined analysis separating the behavior from its suspected cause, and in-house counsel can take that more detached view.”

If a company does decide to address an employee’s behavior, Frost Brown Todd Member David Skidmore says companies have two choices. “You can deal with the conduct of the employee who is acting out and you refrain from diagnosis altogether ... That’s probably the simplest thing to do,” he says. “But if you want to go down this counseling route, then you better have established why it is job-related and consistent with business necessity.”